Is Lawfare Being Abused by American Lawyers?

Since 9/11 and the ensuing wars in Afghanistan and Iraq, the term "lawfare" has gained currency. As I discussed briefly in a prior column, "lawfare" is the effort to achieve or defeat military objectives through legal tools.

In theory, lawfare could have beneficial effects. In reality, however, there is evidence it has been seriously misused, even abused.

In this column, I'll discuss a few key examples.

The Muhammed Salah Case

In Chicago, federal prosecutors indicted American citizen Muhammed Salah, alleging he was part of a Hamas racketeering conspiracy. Salah, the indictment claimed, had delivered funds given to him by Hamas leader Musa Abu Marzook into Israel.

Prosecutors sought to offer the testimony of the Israeli interrogator who elicited Salah's confession. However, Israeli security officers have often been burned in the past when trying to assist foreign partners, and are extremely reluctant to travel abroad for fear of being harassed or served with legal papers accusing them of unfairly of human rights violations. Thus, the court allowed the officer to testify in a closed courtroom, under a pseudonym and in a light disguise. The testimony, the court made clear, would be given in the presence of the jury, and that of Salah and his attorneys -- who would have a full opportunity to cross-examine the officer.

In my view, this solution was plainly a reasonable accommodation of both Salah's right to confront his accuser, and the legitimate interest of the security officer. Yet Salah's attorneys complained that this constituted the use of "secret evidence," and would set "a very dangerous precedent."

Moreover, when the court rejected their "secret evidence" arguments, and Salah was convicted, the attorneys only repeated them, in a ChicagoTribune editorial. The Muslim Public Affairs Council, too, claimed that the judge had "allowed the agents to testify in a closed hearing that amounted to secret evidence." Other civil rights organizations also supported defense counsel's arguments, without making clear in what sense they believed evidence had supposedly been kept secret from Salah.

Upon closer examination, the "secret evidence" argument is ridiculous: Far from the evidence against him being secret, Salah was afforded the chance to sit there, with his attorneys, and listen to it himself, hearing exactly what the judge and jury heard, and, if he chose, assisting his attorneys in his attempt to rebut it. Moreover, after the officer gave the evidence before the jury, the judge, the defendant, and the attorneys, Salah's lawyers had the chance to fully cross-examine him. The only things kept secret were the officer's real name, and undisguised appearance, but these were irrelevant to the case.

Was a lawfare strategy behind this specious "secret evidence" argument? Perhaps. After all, had the defendants prevailed, they would have unmasked an Israeli intelligence agent and thus potentially harmed U.S./Israel relations. Moreover, an interesting fact is revealed in a very sympathetic article by Richard H. Curtiss, the executive editor of the Washington Report on Middle East Affairs. The article quotes Salah as saying, "My lawyer wants to bring the Israeli interrogators who tortured me into court. He tells me, 'I want to put Israel on trial.' When I say I don't want this to go on forever, he replies, 'If we win your case, we will win it for everyone."

Thus, by Salah's own admission, at least one person on his legal team sought to use the Chicago proceedings for larger geopolitical purposes, even if it meant overriding his or her own client's wish that the trial conclude soon. And that is certainly an abuse of the idea of lawfare.

Another Possible Abuse of Lawfare: The Guantanamo Detainees' Case

Lawfare may also have been at work in recent and past litigation involving Guantanamo Bay detainees. On February 20,inBoumediene v. Bush, the U.S. Court of Appeals for the D.C. Circuit rejected Guantanamo detainees' claim of a right to seek judicial review of their detention via the writ of habeas corpus.

The court found that Section 7 of the Military Commission Act of 2006 foreclosed the habeas corpus remedy. Rightly so: The statute was clear that U.S. courts, justices, and judges shall have no jurisdiction over aliens detained at Guantanamo Bay.

Moreover, this carve-out is well-supported by precedent: In no case in U.S. or British history have habeas corpus rights been afforded to aliens detained in the kind of circumstances that existed when the Guantanamo detainees were taken into custody. No wonder, then, that the court found that "the Constitution does not confer rights on aliens without property or presence within the United States."

Interestingly, the case raised the flip side of a point made by one of the great liberal Supreme Court Justices, William Brennan. In 1990, in United States v. Verdugo-Urquidez, the Court held that the Fourth Amendment did not apply to Drug Enforcement Agency operations conducted outside the United States. Arguing that the Fourth Amendment should indeed have applied, Justice Brennan wrote "If we expect aliens to obey our laws, aliens will expect us to obey our Constitution when we investigate, prosecute and punish them." In essence, Brennan argued that turnabout is fair play: The law-abiding can reasonably expect the protection of the law, wherever they may be.

But conversely, when aliens flagrantly break our laws because they are committed to our destruction, we hardly have an obligation to grant them the full benefits of citizenship - and our most cherished individual freedoms - thus assisting them in their efforts against us.

Was the attempt to get the D.C. Circuit to extend habeas corpus rights to Guantanamo detainees a form of lawfare? Again, it's quite possible. Expanding habeas corpus rights to prisoners of war would make warfare involving the United States more difficult, if not impossible. (For example, the U.S. military could, under established rules in the Law of Armed Conflict, legally bomb a building, but then legally be prohibited, based on the Fourth Amendment, from searching the same building without a warrant. While this is an absurd result, it follows directly from the arguments in favor of the detainees.) Other countries would thus gain a military edge over the U.S. if Guantanamo detainees could file habeas corpus petitions.

Having lost in court, the lawyers for Guantanamo inmates announced their plan to appeal the ruling to the U.S. Supreme Court, as is their right. No problem there. They then did something that looks suspiciously like an abusive form of lawfare: they went out on the courthouse steps and tried to rally the public behind their clients, through a naked appeal to our emotions.

In the February 21, 2007 Washington Post story about opinion, Shayana Kadidal, a lawyer with the Center for Constitutional Rights said that his clients at Guantanamo have experienced "disgust and exasperation at the American legal system" and that their "feelings of desperation now will only grow." Kadidal does not elaborate why his client's feelings of frustration are relevant to the legal issues. If they are, it is only to the goal of injecting emotion into the proceedings.

It's Plain that Terrorists Themselves Are Using Lawfare as a Tactic

Finally, and significantly, it's quite plain that the terrorists themselves are engaged in lawfare. We know this because we seized their playbook.

Currently, in Spain, several Madrid train bombing suspects are on trial. Reportedly, they possessed a manual similar to those recovered in Al Qaeda hide-outs, instructing operatives in how to act if captured:

"Deny all facts, state that you are innocent and follow the strategy of concealment. You must convince your interrogators that all the information they possess is wrong. Insist that you do not have anything to do with this group or that person." Other versions of the Al Qaeda manual describe how inmates should make false torture allegations.

These false denials and allegations won't be much use except in countries like ours which protect the rights such as the right to remain silent, the right to due process of law, and the right to be considered innocent until proven guilty beyond a reasonable doubt. Thus, this Al Qaeda tactic directly uses our system in service of the terrorists' objectives: the most disturbing form of lawfare of all. It appears that some American lawyers are involved in this effort.

Jeff Breinholt, a member of the State Bar of California, is Deputy Chief, Counterterrorism Section, United States Department of Justice. The views expressed in this article are the author's own and do no reflect those of the Department of Justice.